The Future of EU Merger Control: Squaring the Circle?
Watch the Event
About:
“The European Commission’s ongoing review of its merger guidelines attempts to reconcile the seemingly heterogeneous objectives of competitiveness, resilience, innovation and legal certainty within a single framework. This naturally raises a key question: can the Commission square the circle?”
The International Center for Law & Economics (ICLE) and the University of Liège Institute for EU Legal Studies had a high-level conference in Brussels on October 15th that addressed this critical issue. Our conference aimed to foster an open, high-level discussion that will brought answers to this complex question.
Across two insightful panels, leading competition policy experts addressed the most pressing questions in European competition policy today: How should new guidelines reconcile expanded enforcement goals with existing EU law, court rulings, and standards of evidence? And how can merger control remain coherent and predictable while addressing emerging theories of harm and fast-moving markets? Our event aimed to foster thought-provoking and interactive discussions on the potential direction and impact of these reforms.
Speakers:
- Dirk Auer (International Center for Law & Economics)
- David Bosco (Aix-Marseille University, Faculty of Law and Political Science)
- Daniele Calisti (European Commission, Brussels)
- Giuseppe Colangelo (International Center for Law & Economics & University of Basilicata)
- Axel Desmedt (Belgian Competition Authority)
- Eliana Garces (ALP Economics)
- Geoffrey Manne (International Center for Law & Economics and IE Law School)
- Norman Neyrinck (University of Liege & Lexing Law Firm)
- Andreas Reindl (Van Bael & Bellis)
- Thibault Schrepel (Vrije Universiteit, Amsterdam)
- Alexandre de Streel (CERRE & University of Namur)
- Ingrid Vandenborre (Skadden)
Panels:
Panel I – Competitiveness and resilience
EU merger control has long sought to balance transactions that boost dynamic competition and innovation with protection against durable market power. The Commission’s review now explicitly emphasizes new goals—particularly “competitiveness” and “resilience.” Yet critical questions remain unresolved: How exactly should merger guidelines account for objectives that go beyond established competition concerns? What practical standards or metrics can guide enforcement without overstretching existing EU law?
This discussion explored these open questions. Are recent court rulings, such as Illumina/Grail, reshaping the scope of permissible merger control, or do they simply reflect existing law? Does elevating goals like resilience risk transforming merger policy into an all-purpose tool without a coherent guiding standard? Is promoting competitiveness and resilience compatible with the established goals and standards of EU merger control? Ultimately, can new guidelines reconcile these expanded objectives with the foundational principles of predictability, legal certainty, and consumer welfare?
Panel II – Mergers and innovation: Killer acquisitions, ecosystem theories of harm, and AI
Digitalisation creates complexity in merger enforcement—prompting theories of harm such as killer acquisitions, ecosystem entrenchment, and data-driven foreclosure. But as these theories move from economic literature into enforcement practice, the role and limitations of guidelines become critical. How should the Commission’s guidelines clarify enforcement approaches without rewriting established EU law or unduly stretching Article 2’s framework? What lessons, if any, do recent decisions hold for assessing nascent competition or ecosystem dynamics?
This panel discussed the extent to which merger control should address forward-looking concerns, particularly pertaining to digital markets. If so, what evidentiary thresholds or limiting principles should restrain forward-looking theories? And how do guidelines remain flexible enough to capture genuine innovation threats without sacrificing legal certainty, coherence, and predictability in merger enforcement?
